Failed Evidence’s Examination of the Reid Technique Featured on Shadow Boxing

An interview with Failed Evidence author David A. Harris about the Reid Technique, the most popular method for interrogating suspects in U.S. police departments, is featured on Shadow Boxing,  a blog written for Psychology Today.  Shadow Boxing is written by Dr. Katherine Ramsland, who teaches and writes about forensic psychology.  The post was chosen as an “essential read” for the Education area of Psychology Today.  Here’s an excerpt:

The technique seems to be designed for entrapment and even a bit of brainwashing. Is this perception accurate?

I guess I would put it a little differently, though I do understand why you would see it that way. The Reid technique for interrogation is not a process designed for the discovery of facts and evidence. Rather, it is a multi-phase process, to be used when the interrogator has already concluded that the subject is guilty, and therefore simply needs the confession out of the person to confirm the guilt and prove it.

On the 50th Anniversary of Gideon, Part I: Why Provide the Assistance of Counsel to the Accused at State Expense?

March 18 marks the 5oth anniversary of the U.S. Supreme Court’s decision in Gideon v. Wainwright.  The Gideon case requires that if person charged with a felony wants the assistance of a lawyer but cannot afford one, the state must provide a lawyer at no charge.  The Court based its decision on the Sixth Amendment‘s guarantee of the right to the assistance of counsel.  When facing felony criminal charges that could result in prison, the Court said, lawyers were “necessities, not luxuries.”

In a decision nine years later, the Court extended the right to counsel to misdemeanor cases in which the trial judge might send the accused to jail.  But the right to counsel remains limited to criminal cases; while many jurisdictions have created organizations that provide lawyers  in civil cases (divorces, child custody cases, etc.) for people who cannot afford to pay, the  state is under is no constitutional obligation to do so.

There has been a lot said in the run-up to this 50th anniversary about how well the promise of Gideon has actually been carried out around the country.  I’m going to post about some of those issues later this week.   I want to begin with a more basic question, which I discussed in an interview on public radio a few days back: why should the state have to pay for lawyers for indigent defendants?  There are three important points to make.

First, we don’t supply counsel because of poverty.  We may or may not believe that there is a moral obligation to help the poor with basic needs, but our Constitution does not require that the state do this.  As Justice Harlan once said in another case, the Constitution does not include a philosophy of leveling.  The bottom line is that this shouldn’t be thought of as an act of charity.

Second, we handle cases in this country in an adversary system of justice.  Unlike other countries, evidence in our system is presented by both sides.  Each side works at exposing the weaknesses of the other through cross-examination and presentation of competing evidence.  The essence of such a system is the ability to challenge the other side’s evidence effectively.  If the accused has no lawyer, he or she will be unable to mount an effective challenge.  This would destroy the balance in the whole system.  This isn’t a matter of giving the defendant a “sporting chance,” or having an equal shot at winning.  Rather, in a process initiated by the state, the purpose of which is to punish the defendant and take away his or her freedom, it is fundamentally unfair to have one side of the adversary process at such a basic disadvantage.

Third, we don’t provide counsel to the accused because he or she deserves it; we don’t do it for them.  We do it, instead, for us.  Our values, enshrined in the Constitution, require that before the state can strip a person of property, liberty, or life, we must accord that person due process of law and a fair trial.

This may seem ironic, since many people accused of crime seem to have no regard for the law.  But that isn’t the point.  We don’t do it for them.  We do it because of who we are and what we value.  We do it for us.

Picking a New Chief, Part 2: Pittsburgh Mayor Announces He Will Leave the Choice to His Successor

In a post last week, I discussed the choice of a new chief of police in Pittsburgh.  Nathan Harper, the Chief of the Bureau for seven years, had been forced to resign by Mayor Luke Ravenstahl amidst an ongoing FBI investigation into police department finances.  (Mr. Harper has not been charged; the investigation continues.)  Then, just days later, the Mayor announced that he would not run for re-election in November.  With all of this happening, I was among a group of people who testified before the City Council last week on the selection of the new chief.  There was broad agreement on a central point: outgoing Mayor Ravenstahl should not appoint a new chief.  Instead, an acting chief should serve until the next may makes the permanent appointment.  The Pittsburgh Post-Gazette reported:

Pittsburgh Mayor Luke Ravenstahl said Monday that he would not appoint a permanent chief to the embattled police bureau during his remaining 10 months in office and instead will leave the choice to his successor.  ”It wouldn’t be fair in my mind to the next mayor to not have him or her have the chance to choose their chief, especially given all the recent activity around the bureau,” he said.

According to a story on WESA FM, Pittsburgh public radio, Ravenstahl said he would not appoint the next chief because with ten months left in his term, the decision would be “extremely rushed” and therefore should be left to his successor.

Whatever the reason, I think this is a good decision.  I can’t conceive that we would be able to attract top-quality candidates for the post knowing that the administration will change in the next year.  Who would take the job under those circumstances?  One reader suggested appointing a new chief as soon as possible, and writing a contract that would essentially guarantee the new chief a term that would extend into the new mayor’s term even if the mayor didn’t like it.  But that won’t work.  The chief (as I imagine is true in most places) serves at the pleasure of the mayor as a matter of law.  No contract can change this.

Thus the naming of the new chief will have to wait for the outcome of the mayoral election.  In the meantime, the federal investigation continues, and more revelations appear in the press by the day.  The only thing for sure is that the next chief is likely to start with a mandate for clean up and change.

 

So Many Autopsies, So Little Time: Lessons From Mississippi’s Former Medical Examiner

In a story titled “Questions Left for Mississippi Over Doctor’s Autopsies,” we learn about Dr. Steven Hayne, who did most of the autopsies in the state of Mississippi for approximately two decades .  From “the late 1980s through the late 2000s,” Dr. Hayne did autopsies for the state, but rather than receiving a regular salary as a state employee, Dr. Hayne was paid by the autopsy.  This gave him a strong incentive to do as many autopsies as he could.    He did about 1,700 autopsies in most of those years, a caseload that is about seven times the maximum recommended by the National Association of Medical Examiners.

There are now four lawsuits pending concerning Dr. Hayne’s work, with about ten more on the way.  Brought on behalf of inmates who claim they were wrongly convicted, the suits charge that Dr. Hayne misrepresented his qualifications as a forensic pathologist.  Perhaps more importantly, the lawsuits contend that Dr. Hayne drew conclusions based on ideas “that lie far outside standard forensic science.”  For example, in one infamous case, Dr. Hayne testified that a child had died of suffocation when a large male hand had covering his face.  Hayne based this opinion on a cast of the child’s face and his autopsy notes describing wounds on the child’s face, but the “large male hand” idea came weeks after the initial autopsy and only after the child’s three-year-old brother had implicated the mother’s boyfriend.   According to the article, there is no scientific support for what  Hayne did in the case or for the conclusions he drew.

“I saw a very similar case like that on ‘Law & Order: SVU,’ ” said Dr. Andrew M. Baker, the president of the medical examiners’ association and chief medical examiner for Hennepin County, Minn. “I’ve never heard of it in real life.” Dr. Baker said not only was the technique unheard of but so was the ability to speculate from those sorts of wounds about hand size or gender.

It’s tempting to regard this as another in a lengthening list of forensic scandals featuring faulty work.  But Dr. Hayne’s situation is worth noting, because it illustrates the power of forensic science, and why those who perform these tasks must be under reasonable professional scrutiny and be subject to  challenge.   In Mississippi, with no one to challenge him, Dr. Hayne’s autopsy results decided countless cases, and there was no one to push back.  In arrangements like that, disaster awaits.  The article quotes Dr. Lloyd White, the Mississippi state medical examiner from 1989 to 1992, who explains why things like this happen: poor science is “able to persist because scientific testimony is too often viewed with uncritical reverence and because the people affected by its misuse usually have little support or sympathy.”  No one was in a position to challenge Hayne, since he did almost all the autopsy work in the state, and the state and the prosecutors liked it that way.  Years later, individual convicts, their families and perhaps the taxpayers are left to clean up the damage and pay for the mistakes.

Why Robert Bork’s Defeat Mattered (Through the Eyes of Bork’s Former Student)

With Robert Bork’s death on December 19, we have had a chance to look back at the man’s views (as I did in yesterday’s post), and to remember the defeat of his nomination to serve on the U.S. Supreme Court.  Even though Bork never served on the Court, his defeat surely mattered.  Here’s why.

Many recall that Bork’s nomination to the Court brought out unusually strong, vocal opposition.  His legal writings and speeches were mined for extreme views on matters that many Americans had come to take for granted by the 1980s, and critics found examples aplenty.  Among other things, Bork had voiced opposition to constitutional equality for women; to equal rights for blacks and other minorities, enforced through the federal Commerce Clause; to rules that required all voters to have an equal vote in elections; and to basic regulatory protections of health and safety.  Contrary to what some now say, this was not an unfair characterization of Bork’s legal philosophy.  These were Bork’s real views, expressed by him.  This allowed opponents to portray him as a cold-hearted character out of the Gilded Age.  The confirmation battle spawned a new word: to “bork” a nominee came to mean to oppose the person by distorting his or her record.  The description may hold true for some cases, but ironically, not for Judge Bork himself.  As legal commentator Jeffrey Toobin has put it, “It was said, in later years, that Bork was “borked,” which came to mean treated unfairly in the confirmation process. This is not so. Bork was “borked” simply by being confronted with his own views—which would have undone many of the great constitutional landmarks in recent American history.”

All of this is well known.  But perhaps more significant is the fact that the person who eventually got the seat that Bork did not was Anthony Kennedy.  (Almost forgotten is another failed nominee between Bork and Kennedy: U.S. Court of Appeals Judge Douglas Ginsburg, whose nomination was scuttled when reports surfaced that he had been a casual marijuana smoker.)  Kennedy has been the swing vote in so many cases and on so many issues, sometimes taking the Court in new, unabashedly liberal directions.  Just a few examples: Lawrence v. Texas, finding bans on private homosexual activity unconstitutional; Atkins v. Virginia, finding the execution of the mentally ill unconstitutional; Roper v. Simmons, which held executions of persons who were under 18 at the time of the crime unconstitutional; Boumediene v. Bush, finding that habeas corpus applied to detainees at Guantanamo Bay, and that the Military Commissions Act was an unconstitutional suspension of the right to habeas corpus; and Texas v. Johnson, which found that the First Amendment protected the burning of the American flag.  Of course, Justice Kennedy has sometimes swung the other way, but those cases would very likely have come out the same way had Bork  been confirmed.  We know this for certain: Bork would have taken the Court in only one direction — a much more conservative one.  We would be looking at a different America now, in some fundamental and important ways.  And in my opinion, it would not be a better America.

I Remember Robert Bork’s Constitutional Law Class

With Robert Bork’s death on Wednesday, December 19, I didn’t think first of his failed nomination to the U.S. Supreme Court.  Instead, I was back in my first semester of law school, as a student in his class on Constitutional Law.

By the time I took my seat in his class in the Fall of 1980, Bork was already well known. During the  Nixon Administration, he’d served as U.S. Solicitor General, the Administration’s advocate in the Supreme Court.  When the Watergate Scandal began to consume Nixon’s presidency, Archibald Cox was appointed special prosecutor.  Cox showed every sign of pursuing the ugly facts of the case all the way to their origin, and Nixon wanted him fired.  But Nixon’s Attorney General, Elliot Richardson, and Richardson’s deputy, both refused.  Bork stepped forward and fired Cox, in what was known thereafter as “the Saturday Night Massacre.”

Bork was also well known as an acerbic and distinctively conservative voice among law professors.  It was he who came up with what became known as the “original intent” school of constitutional interpretation.  According to Bork, the language of the Constitution and its amendments could only be understood through the intention of those who wrote those words.  Thus constitutional protection for the rights of women, privacy protections for personal decisions on birth control or abortion, the one-person-one-vote rule, even the 1964 Civil Rights Act and its regulation of interstate commerce on a non-discriminatory basis — all of these would be out under the Bork philosophy.

In the classroom, we could all see that Bork was an incredibly smart man.   His mind was powerful, supple, and insightful; he ran rings around all of us without any effort at all.  Lazy, fuzzy, or unexamined thinking got students into trouble quickly.  There was also little humor or humility in his approach; he was a guy with THE ANSWERS, and he made sure you knew it.  The class was challenging, and forced me to re-examine everything I thought I believed, and everything that generations of justices had said in their opinions.  Now, with twenty years in front of classrooms in law schools myself, I know that was the point.  But I often found myself recoiling from what I considered a harsh, almost Hobbesian worldview.  The clear implication of many of Bork’s views would have been the repeal of the New Deal, many steps backward on equality for women and  minorities, and a narrowing of political power to already-favored groups.  A society I did not recognize and had not lived in would have been preserved in amber.

Bork was not shy about these views; on the contrary, he wrote and spoke them frankly and frequently.  Justice Scalia, very much Bork’s intellectual twin, still holds the same sorts of views on interpreting the Constitution; Scalia, though, has gradually backed away from strict “originalism” to what he calls “textualism.”  When he speaks publicly and is challenged on whether his views would, in fact, give him the basis for repealing the New Deal, the regulatory state, and the like, I have heard him say, “I’m a textualist.  I’m not a nut.”  I can only imagine Bork’s scowl upon hearing that.  Bork would not have considered himself a nut, but he would have had — did have — the guts to be consistent.  He meant what he said.

Thus it was no surprise that Bork’s nomination to the Supreme Court attracted opposition fiercer than anything ever seen before.  His chance to be a justice — to enjoy what he told the Senate Committee would be “an intellectual feast” — went down to defeat, 58-42.

Personally, I was not surprised.  Quite aside from his views, which were then very far from the mainstream of even conservative legal thought, he was the same person in front of the Judiciary Committee as he had been in the classroom: an intellectual titan, but dry, harsh, seemingly unmoved by human concerns.  I did not know the man personally; by all accounts of those who did, he had a warm and human side.  But no Senator saw it, and his manner played right in to the efforts to defeat him as a cold-eyed elitist.

Bork lived out the rest of his life as a public intellectual, writing books and giving speeches.  The defeat embittered him, and he became a moral scold.

But, in his time, he mattered, and his defeat mattered.  In my next post, I’ll discuss why.

 

“The Central Park Five:” New Ken Burns Film Highlights False Confessions

Recall the 1989 case of the Central Park jogger: a young woman brutally beaten and sexually assaulted in Central Park.  The suspects, five young black and Latino men, confessed while in police custody.  Based on those confessions — there was no physical evidence connecting them to the crime, and their DNA did not match specimens at the crime scene — they went to prison.  Years after the fact, a convicted rapist and murderer confessed that he had perpetrated the crime, acting alone.  When his DNA did match, the five men were exonerated by a court.

This case is the newest subject for filmmaker Ken Burns, the man who has made widely-acclaimed multi-part PBS documentaries about baseball, the Civil War, and so many other aspects of American life and history.  In “The Central Park Five”, Burns (joined by co-directors David McMahon and Sarah Burns, his daughter) tells a powerful story of injustice.  A major focus of the film is a central question that will be familiar to readers of Failed Evidence: why would anyone ever confess to committing a serious crime, when the person did not do it?  For example, here is Kenneth Turan, film critic for the Los Angeles Times, in a review heard December 3 on National Public Radio’s Morning Edition:

“The Central Park Five” also serves as a cinematic primer on what has become a disturbing aspect of our criminal justice system: the ability and the willingness of police to psychologically manipulate people into confessing to things they have not done.

Turan’s review lets one of the five exonerated men explain why and how such a thing could happen:

They had made up a story saying something like, uh, ‘well, we have your prints on her pants.’  I’m thinking, ‘how did they take my prints, and put it on her pants?’

Readers of Failed Evidence will recognize what happened here: lies about forensic results and forensic testing are among the perfectly legal interrogation techniques that increase the risk that an innocent person will confess.

Congratulations to Burns and his co-directors for bringing the full story of the case to the nation’s attention.   The question I am most frequently asked, in presentations and interviews of all kinds, remains the same: why would anyone confess to something that the person did not do?  Perhaps The Central Park Five will help give people an answer.

 

Failed Evidence In The Crime Report

Failed Evidence: Why Law Enforcement Resists Science  is the subject  of the featured interview in The Crime Report.  Correspondent Graham Kates interviewed me about the place of science in law enforcement, the gaps in traditional forensic methods, and the reasons that police and prosecutors resist the findings of science.  The Crime Report is published by  the Center on Media, Crime and Justice at John Jay College of Criminal Justice in New York.

See the interview here.

The New Yorker’s “The Hit Man’s Tale” Becomes Another False Confession Story

In the October 15 issue of The New Yorker, Nadya Labi’s “The Hit Man’s Tale” (see the abstract here) tells the story of Vincent Smothers, a killer for hire who plied his trade in Detroit.  It is by turns insightful, horrifying, and fascinating.  And by the end, it turns into another story: how another man confessed to the murder of several people and remains in prison for the crime — even though Smothers says he committed  it.

As is true with many career criminals, Smothers was finally caught, and he confessed to nine homicides, including one involving multiple killings on Runyon Street.  He gave details.  His interrogator believed he was telling the truth, and his statement checked out — all except for one case: the killing on Runyon Street.  Hearing that he had confessed to the Runyon Street killings, a police officer told Smothers, “That’s impossible.  We got the guy…A kid confessed.”  It seems that, seven months earlier, a young man named Davontae Sanford had told the police he had committed those crimes.  Despite inconsistencies between his confession (which he changed multiple times) and the details of the crime, Sanford was convicted.

Interview for the article, Steven Drizin of Northwestern School of Law’s Center on Wrongful Convictions of Youth, said Sanford’s youth and naivete made him a sitting duck.  First, he was a minor, and young people are uniquely vulnerable to pressure in interrogations.  Second, both the judge in his case and his own lawyer told him he should take a plea offer instead of contesting the case at trial.  Sanford did, and remains incarcerated today — despite Smothers having admitted to the crime himself.  And the police fed Sanford details of the crime, which he repeated in his confession, making his words more credible.

The article makes fascinating reading, not least because it morphs from the story of the hit man into the story of a false confession.  And it illustrates the unique power of a confession.  Even without much in the way of other evidence, and with the confession of a man who authorities admit is a contract killer, little may change for Sanford.

 

 

 

Failed Evidence on WESA Public Radio

WESA Public Radio’s Essential Pittsburgh program broadcast an interview with me on Failed Evidence: Why Law Enforcement Resists Science, my new book.  We covered everything from the flaws in fingerprint identification to false confessions to better procedures for eyewitness identification.  To hear the interview, click here  and scroll down to the audio bar under Failed Evidence.